The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges. « Publius-Huldah's Blog
5/10/14, 5:35 PM
The Oath Of Office: The Check On Usurpations By Congress, The
Executive Branch, & Federal Judges.
The Oath of Office & Nullification.
By Publius Huldah.
Rush Limbaugh recently 1 castigated our putative president for announcing that his regime would not
enforce the Defense of Marriage Act. Rush said:
“…He’s ordering his Justice Department not to defend a federal law. Nobody has said the law is
unconstitutional other than Obama and Holder, and they don’t have the power to do that … For a
president to ignore a federal law … for him to act as legislature and court …is hugely troubling …”
Newt Gingrich commented to the same effect to Newsmax on Feb. 25, 2011; and added that “it’s a
violation of his [Obama's] constitutional oath” and “could lead to a constitutional crisis”.
Not so, Rush & Newt! Actually, it is a President’s sworn duty to refuse to enforce any unconstitutional
“law” made by Congress. And contrary to the misinformation with which we are constantly bombarded,
judges are not vested with exclusive authority to declare Acts of Congress unconstitutional.
The Truth is that a President, the States, local governments, and individual citizens, together with the
courts, all have the Right & Duty to overrule – to spurn & cast out – unconstitutional laws made by
Congress. For it is a fundamental [though long suppressed] Principle of our Founding that an
unconstitutional “law” is no “law” at all – it is a “mere usurpation, and deserves to be treated as such”.
Our Framers placed “Oaths of Office” in the Constitution. When honored, these Oaths function as “checks”
on the powers of the federal government and protect us from usurpations. Each Branch of the federal
government has “the check of the Oath” on the other two branches.
The States, whose officials also take the Oath of Office, have the same check on all three branches of the
federal government.
And WE THE PEOPLE, the “original fountain of all legitimate authority” (Federalist No. 22, last para),
have the Right to overrule violations of the Constitution by elected & appointed officials.
Ignorance of Our Founding Principles
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WE THE PEOPLE forgot our Founding Principles. Conservative lawyers, politicians, judges,
“intellectuals”, and radio & TV pundits don’t know them. The lawyers uncritically accepted what they were
told in law school, and the non-lawyers accept what other people say. No one learns The Constitution –
no one thinks independently – like Dufflepuds, they chant the prevailing dogma. As a result, our Country
spirals downward at an ever quickening pace.
But if you read on, you will learn seven of our Founding Principles:
1. Who Really Is The Boss? WE THE PEOPLE? Or the Federal Government?
WE THE PEOPLE created the federal government when we ordained & established the Constitution for
the United States of America. WE created the three branches of the federal government and itemized the
powers WE granted to each branch. 2Neither the Legislative, nor the Executive, nor the Judicial Branch
may lawfully do ANYTHING unless WE authorized it in the Constitution. WE are the Creators; those in
the federal government, be they Senators, Representatives, federal judges, Presidents or other officials, are
merely our “creatures”. When they disobey the Constitution, WE are to take action. In Federalist No.
33 (5th para), Alexander Hamilton says:
“If the federal government should overpass the just bounds of its authority and make a tyrannical
use of its powers, the people, whose creature it is, must appeal to the standard they
have formed [the Constitution], and take such measures to redress the injury done
to the Constitution as the exigency may suggest and prudence justify.” [emphasis
added]
Did you get that? Read it again.
2. Congress’ Powers are Enumerated
In the Constitution, WE authorized Congress to make laws only on those objects WE listed in the
Constitution. Those few objects on which WE authorized Congress to make laws applicable throughout
our Country are itemized at Art. I, Sec. 8, clauses 1-16 (and in a few Amendments). Here is an
explanation of Congress’ Enumerated Powers.
3. When is a “Law” Not a Law?
When it’s a usurpation! I.e., when Congress makes any “law” which the Constitution does not authorize it
to make. Our Framers understood that civil governments seek to expand their powers; but when our
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The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges. « Publius-Huldah's Blog
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federal government does so, its acts are VOID. In Federalist No. 33 (last para), Hamilton says a law
made by Congress which is not authorized by the Constitution,
“…would not be the supreme law of the land, but a usurpation of power not granted
by the Constitution…” [boldface mine]
In Federalist No. 78 (10th para), Hamilton says:
“…every act of a delegated authority, contrary to…the commission under which it is exercised, is
void. No legislative act … contrary to the Constitution, can be valid. To deny this,
would be to affirm…that men acting by virtue of powers, may do not only what their
powers do not authorize, but what they forbid.” [emphasis mine]
Do you see? If Congress makes a law which is not authorized by the Constitution, then it is no “law” at all.
It is a “mere usurpation” – it is “void” and “not valid“.
4. What is the “Rule of Law”?
Article VI, clause 2, says the Constitution, and the Laws & Treaties authorized by the Constitution,
are the “supreme Law of the Land”. The Rule of Law prevails when the civil authorities obey The
Constitution. Webster’s 1828 Dictionary says for “Constitution”:
“…In free states, the constitution is paramount to the statutes or laws enacted by the
legislature, limiting and controlling its power; and in the United States, the legislature is
created, and its powers designated, by the constitution.”
If any Branch fails to obey the “supreme Law”, then, in order to preserve the Rule of Law, the other
Branches, or failing that, the States or THE PEOPLE, must overrule them.
5. What Does the Oath of Office Actually Say?
Article II, Sec. 1, last clause, sets forth the President’s Oath of Office:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United
States, and will to the best of my Ability, preserve, protect and defend the Constitution of the
United States.”
Article VI, clause 3, provides that all other representatives, officers & judges (federal and state) are bound
to support the Constitution.
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6. The Check Provided by the Oath of Office
The Key is this: One’s Oath is pledged to The CONSTITUTION - the Oath is NOT to go along with
Congress, or to obey the Executive Branch, or submit to federal judges.
The President’s “Check” on Congress and Federal Courts:
Say Congress makes a “law” which says Jews must wear a yellow star on their arm; Christians, a white
cross; & that it’s a felony if they fail to wear the armbands. Imagine you are President. You vetoed the bill;
but Congress overrode your veto. Are you going to enforce that “law”?
Look at your Oath of Office. Does your Oath require you to obey Congress 3 unless & until five people on
the supreme Court say you don’t have to? And even if those five side with Congress, will you allow U.S.
Attorneys to prosecute Christians & Jews who don’t wear the arm bands?
Or will you look at your Oath of Office which recites that your Sworn Duty is to “preserve, protect and
defend the Constitution of the United States”. The Constitution – not whatever law a majority of
people in Congress pass & five people on the supreme Court approve. If you are faithful, you will review
Art. I, Sec. 8, clauses 1-16, and you will ask, “Where is Congress authorized to make a law which
requires Christians & Jews to wear armbands? You will see that The Constitution does not
authorize Congress to make the law, and you will see that the supreme Court’s opinion upholding it is
unconstitutional. You will denounce the pretended law & judges’ opinion as “mere usurpations”, and you
will instruct the Attorney General & U.S. Attorneys NOT to prosecute violations of that pretended “law”. 4
Four Checks on Federal Judges:
We were told in law school that the supreme Court is the ultimate authority on the Constitution, and when
they [or rather, a majority of five] speak, we must all scurry to obey. Rubbish!
The Oath of Office (Art. VI, last clause) does require judges to strike down “laws” made by Congress which
are unconstitutional. Hamilton recognizes in Federalist No. 78 (9th para, et seq.) that judges have the
power to strike down unconstitutional “laws”.
But this is the only “check” law students hear about! Since they don’t know about The Federalist Papers
& (thanks to progressive education) can’t think, they graduate law school believing that the only “check” is
that of federal judges to declare laws made by Congress unconstitutional (“judicial review”). They believe
that no one has a check on the supreme Court – that their word is final.
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Not so! Federal judges are not gods. They are morally & intellectually fallible people who (as our
Framers saw) can cause dreadful harm to our Country when they connive with another Branch.
Thus, they are subject to “the check of the Oath” for their usurpations – checks imposed by Congress, the
Executive Branch, the States, and THE PEOPLE:
(a) Congress must impeach & remove federal judges who usurp power – they serve during “good
Behaviour” only (Art. III, Sec.1). Hamilton discusses impeachment of usurping judges in Federalist No.
81, 8th para. 5 So yes! Congress may review the propriety of judges’ opinions!
(b) The President must refuse to go along with unconstitutional opinions. Hamilton saw that federal
judges might become “embarked in a conspiracy with the legislature” (Federalist No.16, next to
last para). So the President is bound by Oath to reject unconstitutional “laws” even when approved by the
supreme Court. And Hamilton understood that it might be appropriate for a President to refuse to enforce
a federal court opinion. He says in Federalist No. 78 (6th para):
“…The Executive not only dispenses the honors, but holds the sword of the community. The
legislature not only commands the purse, but prescribes the rules by which the duties and rights
of every citizen are to be regulated. The judiciary … has no influence over … the sword or the
purse; no direction … of the strength or of the wealth of the society; and can take no active
resolution whatever. It may truly be said to have neither FORCE nor WILL, but
merely judgment; and must ultimately depend upon the aid of the executive arm
even for the efficacy of its judgments.” [caps are Hamilton's, other emphasis mine]
Do you see?
(c) The States must nullify unconstitutional opinions. 6 State officers & judges are bound by Oath to
support the Constitution (Art. VI, last clause). So they too are Honor bound to refuse to comply with
unconstitutional federal court opinions, as well as unconstitutional federal laws, executive orders, &
pretended treaties which affect them & their Citizens.
7. The People Have The Ultimate Power & Responsibility to Enforce The Constitution
For too long, we have shirked our Responsibility to enforce The Constitution – we let the supreme Court
be in charge.
Look at what they have done with the power we relinquished to them: They approved Congress’ massive &
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grotesquely unconstitutional expansions of federal control over our lives [e.g., their "interstate
commerce clause" & "general welfare clause" jurisprudence]; they outlawed the Faith of Our
Fathers & used the 14th Amendment to bring about a radical redefinition of “Liberty” as freedom
from moral restraints; and they connived with Congress in turning the once proud American People into
parasites who clamor to live at other peoples’ expense. They usurped Our status as the “pure, original
fountain of all legitimate authority”, and claim for themselves the power to “make policy” for our
Country!
Our Framers Understood That Judges Could Be Dangerous – But Couldn’t Get Away With It
Unless WE Concurred.
Hamilton says “an illegal usurpation of authority”, to be successful, “would require not merely a factious
majority in the legislature, but the concurrence of the courts of justice and of the body of the
people.” Because judges may be “embarked in a conspiracy with the legislature”, Hamilton
expected the People to be “enlightened enough to distinguish between a legal exercise and an
illegal usurpation of authority.” (Federalist No.16, next to last para).
“…liberty can have nothing to fear from the judiciary alone, but would have every thing to fear
from its union with either of the other departments…” ( Federalist No. 78, 7th para).
James Madison says in Federalist No. 44 (last para before 2.):
“…the success of the usurpation [by Congress] will depend on the executive and
judiciary departments, which are to expound and give effect to the legislative acts; and in the
last resort a remedy must be obtained from the people, who can, by the election of more faithful
representatives, annul the acts of the usurpers.” [boldface added]
So! It is up to The People, who are “the natural guardians of the Constitution” (Federalist No.16, next
to last para), to take whatever action is necessary when their representatives in the federal
government concur with the usurpations of another Branch – and thereby violate their Oaths to preserve
The Constitution.
How do we become “enlightened enough” to do this?
Read The Declaration of Independence & The Constitution – read them often. The more you read, the
more you will come to see that The Constitution gives effect to the Principles of the Declaration. Outline
The Federalist Papers. Get Mary Webster’s edition in modern English for yourself and the young
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people in your Family. Consult Webster’s 1828 Dictionary for definitions. Be careful whom you trust
– most conservative lawyers have minds like blank sheets of paper which got imprinted in law school; and
the conservative commentators regurgitate what the indoctrinated lawyers tell them! Study so that you
can speak like this wonderful woman who challenged Rep. Pete Stark on obamacare.
Stop wasting your time on bizarre theories about the Uniform Commercial Code (UCC) , “emergency
powers”, “corporations”, gold fringe on flags & admiralty jurisdiction, and other such silly stuff. It may be
tempting to place the blame on others who are in a secret cabal to take away your rights via nefarious
schemes such as the UCC, “corporate government” , or adding gold fringes to flags; but the Truth is that
you, along with everyone else, haven’t bothered to do the Work to learn our Founding Documents &
Principles.
Lose your pride in your own knowingness about The Constitution: What you think you know, just ain’t so;
and the misinformation in your head blinds you to Truth. When you just repeat the stuff you hear, you add
to the problem. Millions of Americans heard Rush & Newt and were mislead by the misinformation those
two spread. And for Heaven’s Sake, don’t advocate ratification of Amendments to the Constitution until
you fully understand the existing Constitution! [And if you fully understood it, the only amendments you
would want are those repealing some of the previous amendments.]
Stop thinking like a slave – we have become a Country of “permission seekers”. For every issue, we want
to file a lawsuit in federal court. Why? Because we don’t want to take Responsibility for dealing
with the issue ourselves. Spend a few hours studying the Declaration & Constitution and you will know
the Constitution doesn’t give Congress authority to force you into a government controlled “health care”
system. You will know it doesn’t give the Executive Branch authority to control CO2 emissions. You
will know it doesn’t give the Executive Branch & Congress authority to force us into pernicious UN
treaties such as the Declaration on the Rights of the Child & to implement [as they are doing right now]
the UN’s Agenda 21 “sustainable development” scheme. Many federal judges are our enemies – they are
the last people you should ask for permission to have constitutional government. WE need to “man
up” and take responsibility.
As Madison advises, defeat elected federal & State officials who have betrayed us; and replace them with
faithful servants who will annul the acts of the usurpers.
Learn your State’s recall statutes – recall faithless elected officers. Learn your State’s impeachment
procedures – demand impeachment of faithless State judges and officers. Demand impeachment of
faithless federal officials and judges. Demand that each house of Congress expel members who usurp
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power (Art. I, Sec. 5, clause 2). Expel the loons in the House!
Learn about Nullification by States and restore Jury Nullification in criminal cases. 7
Learn about Federalism. Urge repeal of the 17th Amendment to help restore “federalism”.
Learn from the heroic Rev. Dr. Martin Luther King, who practiced non-violent civil disobedience of unjust
State “laws” which enforced segregation. Withdraw your concurrence to usurpations.
Endnotes:
1 Rush’s
show of Feb 24, 2011. When Rush speaks on the Constitution, beware! But when he speaks on
other matters, he can be brilliant. And Gingrich, who is supposed to be an intellectual & an expert,
showed he is profoundly ignorant of our Founding Principles.
2
Art. I creates the Legislative Branch & enumerates its powers. Art. II creates the Executive Branch &
enumerates its powers. Art. III creates the Judicial Branch & enumerates its powers.
3
You may object, “But Art. II, Sec. 3 says the President “shall take Care that the Laws be faithfully
executed!” And I would remind you that an unconstitutional “law” is no law at all – it is “a mere
usurpation and deserves to be treated as such” – it is “VOID” & “not valid“.
4
In Federalist No. 66, 2nd para, and Federalist No. 77, last para, Hamilton points out that Congress
may impeach & remove the President for “encroachments” on the powers of the Legislative Branch. So if
Congress objects to your ignoring their pretended law, they may impeach & remove you.
5
Hamilton says in Federalist No. 78 (7th para up from bottom) that judges may not
“…substitute their own pleasure to the constitutional intentions of the legislature … The courts
must declare the sense of the law; and if they should be disposed to exercise WILL instead of
JUDGMENT, the consequence would … be the substitution of their pleasure to that of the
legislative body...” [caps are Hamilton's]
When federal judges substitute their pleasure for that of Congress [when Congress' acts are constitutional]
Congress is honor bound to impeach & remove them for their usurpation. And everyone else is honor
bound to spit on the judges’ unconstitutional opinion. Yes! It takes he-men & she-women to enforce The
Rule of Law! Man up, People!
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The supreme Court issues unconstitutional opinions all the time. Look at how they perverted the 14th
Amendment and the 1st Amendment! In these (& other) cases, they substitute their pleasures for the
Will of The States and The People.
7
Webster’s 1828 Dictionary has the following entry under “jury”:
“…Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil
causes, and to decide both the law and the fact in criminal prosecutions …” [emphasis
added]
Would you convict someone for the “crimes” of failing to buy health insurance or failing to wear the
armbands? THAT is the essential purpose of Jury Nullification in criminal cases. Get your Legislatures to
restore it and insist that it be applied in federal criminal trials conducted in your State. PH
March 29, 2011; revised Nov. 16, 2011
March 29, 2011 - Posted by Publius Huldah | Article VI, clause 3, Checks and Balances,
Nullification of unconstitutional acts, Oath of Office, Resistance to tyranny, States Retained
Powers, States Rights, Usurpations of power | Oath of Office; Checks and Balances;
usurpations of power; nullification
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